## IN THE SUPREME COURT O F TEX AS

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### I N T H E 

### I N T E R E S T O F 

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. C

. R

. , C H IL D

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F I R S T D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 Argued April 23, 2013

C H I E F J U S T I C E J E F F E R S O N delivere d the opinion of the Court

We require t h e State to overc ome signific ant burdens befor e removing a child from his pare nt. These impediments are essential to protec t the parent’s funda mental liberty

interest in the companionship, car e, custody , and manag ement of her children. But “[j] ust as it is imperative for 1
courts to rec og nize the constitutio n al underpinning s of the pare nt-child rela tionship, it is also essential that emotional and phy sical interests of the child not be sacr ificed mere ly to prese rve that rig ht.” In re C.H. , 89 S.W .3d 17, 26 (Tex. 2002). 2

L a s s i t e r v . D e

p ’ t o f S o c . S e r v s . , 4 5 2 U

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. 1 8 , 2 7 ( 1 9 8 1 ) ; s e e I n r e E

. R

. , 3 8 5 S

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. 3 d 5 5 2 , 5 6 3 ( T e x . 2 0 1 2 ) 1 ( “ P a r e n t a l r i g h t s a r e ‘ f

a r m o r e p r e c i o u s t h a n a n y p r o p e r t y r i g h t , ’ a n d w h e n t h e S t a t e i n i t i a t e s a t e r m i n a t i o n p r o c e e d i n g , ‘ i t s e e k s n o t m e r e l y t o i n f r i n g e t h a t f

u n d a m e n t a l l i b e r t y i n t e r e s t , b u t t o e n d i t
. ’ ” ) ( q u o t i n g S a n t o s k y v . K r a m e r , 4 5 5 U

. S

. 7 4 5 , 7 5 8

- 5 9 ( 1 9 8 2 ) ) ; s e e a l s o H o l i c k v . S m i t h , 6 8 5 S

. W

. 2 d 1 8 , 2 1 ( T e x . 1 9 8 5 ) ( n o t i n g t h a t “ i n v o l u n t a r y t e r m i n a t i o n s t a t u t e s a r e s t r i c t l y c o n s t r u e d i n f a v o r o f t h e p a r e n t ” )

. S e e a l s o T E X . F A M . C O D E § 1 5 3

. 0 0 1 ( a ) ( 2 ) ( “ T h e p u b l i c p o l i c y o f t h i s s t a t e i s t o . . . p r o v i d e a s a f e , s t a b l e , a n d 2 n o n v i o l e n t e n v i r o n m e n t f o r t h e c h i l d

. ” )

.The Family Code allows a court to terminate a pare nt’s rig hts to her child if the child has

been in the S tate’s custody for a t least nine months, and the S tate proves, by clea r and convincing evidenc e, that the pare nt failed to comply with a court order that specifie d what she had to do to g et her child back. T E X . F A M . C O D E § 161.001(1)( O). The provision applies, howeve r, only if the child

was re moved from the pa rent unde r Family Code Chapter 262 for “abuse or neg lect of the c hild.” Id

. We must decide whether abuse or neg lect includes placing the child’s phy sical health or safe ty at s ubstantial risk, as out lined below. Be ca u se we conclude that it does, and beca use t he parent’s abuse or neg lect of another child is rele vant t o that deter mination, we reve rse in part the court of appea ls’ judgme nt and re mand the ca se to that court. I. Background After M.R. was seen punching and drag g ing h er four- y ear -old daug hter, Y.C., by her pony tail down the st re et , a witness called the authorities. M.R.’s eig ht-month-old son, E.C.R., was not prese nt during this incident. The police found that Y.C. had fre sh bruising on her fac e, dried blood inside her nose, cuts on her fore head and lips, and multipl e scra pes. The police arr ested M.R., who denied causing the injuries but later pleade d g uilty to bodily injury to a child, a third-deg ree felony

. The Depa rtment of Fa

mily and Protective Service s rec eived a ref err al of phy sical abuse of Y.C., who

was sent to live with her fathe r. After its invest i gat ion, the Depa rtment place d E.C.R., whose pater nity was unde termined, with foster pare nts. The Depa

rtm ent took possession of E.C.R. under Family Code section 262.104, which authoriz es p ossession without a court order if circ umstances would lead a person of ordinary prudenc e and caution to believe tha t the child fac ed “a n immediate dang er to [his] phy sical health
2or safe ty .” T E X . F A M . C O D E § 262.104. The next day , the Depa rtment filed a petition seeking

conser vatorship of E.C.R. and termination of M.R.’s pare ntal rig hts. The petition was supported by

a six -pag e aff

idavit rec ounting the circ umstances n ecessitating E.C.R.’s remova l. The aff idavit descr ibed t he allegations of phy sical abuse of Y.C. and also noted t hat M .R. had a prior C PS case involving phy sical abuse of an older s on, who was in the permanent m anag ing conservatorship of foster parents. M.R. told case worke r C y ntera Donatto t hat s he had twice attempted suic i d e while spending three day s in jail for the incident involving Y.C. After being rele ased from jail, M.R. slept

on the streets and left E.C.R. with her boy friend at his home. M.R. told Donatto that the boy friend phy sically abused her and was not sta ble. A cr iminal backg round chec k reve aled that he had been

arr ested seven times over the past deca de for theft, burgl ary , driving with an invalid license, and

ev ad i n g arr est. The day afte r she met with M.R., Donatto lear ned that M.R. had ag ain b ee n incar cer ated. Donatto observe d E.C.R. and noted that, unlike Y.C., there wer e no evident signs that E.C.R. had been phy sically abused. He appea red clea n, healthy , an d d ev elopm entally on targ et. But his mother’s history of abusing her other children, h er fra g ile mental state, and her criminal case and incar cer ation persua ded Donatto that E.C.R. sho uld not be left in M.R.’s car e. Be cause E.C.R.’s pater nity was unknown, the Depa rtment soug ht to be named his temporar y manag ing conser

vator. That day , the trial court found that E.C.R. had been remove d pursuant to section 262.104 and that he fac ed a continuing dang er to his phy sical health or safe ty if returne d to M.R. The trial court also found that the nature of the emer g ency and the continuing dang er to E.C.R.’s welfa re made his

3return to M.R. impossibl e or unrea sonable. The court set the matter for a full adver sary hear ing

within fourteen da

y s. After that hear ing the trial court found su ff i ci ent evidenc e to satisfy a person of ordinary prudenc e and c aution that: (1) there was a dang er to the phy sical health or safe ty of the child which was cause d by an act or failure to act of the person entitled to possession and fo r t h e child to remai n i n t h e h o m e is contra ry to the welfa

re of the child; (2) the urg ent need for protec tion require d the immediate remova l of the c hild and makes eff orts to eliminate or preve nt the child’s remova l impossibl e or unrea sonable; and (3) notwithstanding rea sonable eff

orts to eliminate the need for the child’s remova l and enable the child to return home, there i s a substantial risk of a continuing dang er if the child is returne d home. The court appointed the Depa rtment temporar

y manag ing conser

vator and order ed M.R. to comply with the service plan. See T E X . F A M . C O D E §§ 263.101–.106. The court war ned M.R. that her failure to do so could result in the termination of he r par ental rig hts. See id . §§ 161.001(1)( O), 263.106. At a subsequent status hear ing, the trial court signe d additional temporar y order s setting the conditions for E.C.R.’s return to M.R. M.R. had to complete a psy chiatric examination and follow all rec ommendations; complete a psy cholog ical examination and fol l ow all rec ommendations; participa te in coun s e li n g , in c lu d in g in d ividua l, g roup, or family thera py sessions; complete pare nting classes; complete random drug tests; rema in drug fre e; refra in from enga g ing in criminal ac tivity ; maintain stable housing; maintain stable employ ment; succe ssfully complete domestic violence and ang er manag ement classes; and complete all service s outlined in the Family Service Plan. The court found that M.R. revie wed and understood the service plan and was advised t h at u n l ess she was

4willing and able to provide E.C.R. with a safe environment within the time specifie d in the plan, her

pare ntal rig hts could be terminate d. Almost a y ear later, the trial court held a termination hear ing. M.R. g ave limit ed testimony

. She admitted being serve d with c itation a nd rec eiving defe rre d adjudication for 0causing injury

to

a child, but she denied ever telling the case worke r that E.C.R. was not living in a safe environment. She provided the names of two men who might be E.C.R.’s fathe r. She admitted having a prior CPS

case that went to final orde rs, and that she no longe r had c ustody of that child. The Depa rtment repr esenta tive testified that E.C.R. was remove d b ec au s e of the risk of phy sical abuse based on M.R.’s abuse of Y.C. The repr esenta tiv e also stated that M.R. had completed some of the court-or dere d require ments, but she had not satis fi ed t h e “b i g” ones. She failed to underg o a psy chiatric evalua tion or participa te in psy chother apy . The Depa rtment also prese nted evidenc e that M.R. did not obtain employ ment, a violation of both the Family Service Plan and the c onditions of her community supervision, and she had not lived in a home for six mont hs. The trial court terminated M.R.’s rig hts under subsection O of Family C o d e section 161.001(1), finding that such termination was in E.C.R.’s best interest. M.R. appea led, challeng ing the sufficie ncy of the evidenc e support i n g t ermination under that subsection and the best interest finding

. As to the former , her arg u m en t wa s s t raightfor

war d. She did not dispute her failure to comply with the provisions of a court order that specific ally es t ab l i s h ed the actions nece ssary for E.C.R. to be returne d to her and that E.C.R. had been in the Depa rtment’s conser

vatorship for more than nine months. I nstead, she arg ued that ter mination under subsec tion O was improper beca use

5E.C.R. was removed because of risk of abuse based on he r conduc t toward his s ibling, but not for

actua l abuse or ne g lect. The court of appea ls ag ree d, holding that M.R.’s abuse of Y.C. was not evidenc e that M.R. abused or neg lected E.C.R. 3 90 S.W .3d 22, 27. I nstead, “[f]or a trial court to terminate pare ntal ri gh t s under section 161.001(1)( O), it must find that the child who is the subject of the s u i t wa s
remove d as a result of the abuse or neg lect of that specific child.” Id

. T he court noted that “the Family S er v ice Plan and [t he case worke r’s] testimony both show that [t he Depa rtment] beca

me involved as a result of M.R.’s abuse of E.C.R.’s sibling, a fac tor that the court could not consider in

rea ching a finding u n d er section 161.001(1)(O).” Id

. at 28. The court reve rsed the portion of t he trial court’s judgme nt terminating M.R.’s pare ntal rig hts and rende red judgme nt d en y ing the Dep a r tm e n t’ s te r

mination petition. Id

. at 30. A divided court voted ag ainst en banc rec onsideration. 3 Id . (Ke y es, J., di ssenting)

. We gr anted the pe tition for review . 2013 Tex. L EXI S 112 (Fe b. 15, 2013).

T h e c o u r t o f a p p e a l s r e f u s e d t o c o n s i d e r t h e D e p a r t m e n t ’ s c r o s s - p o i n t s a s s e r t i n g a l t e r n a t i v e b a s e s f o r 3 t e r m i n a t i o n . 3 9 0 S

. W

. 3 d a t 2 9

– 3 0 ( h o l d i n g t h a t “ a p a r e n t a l r i g h t s t e r m i n a t i o n o r d e r c a n b e u p h e l d o n l y o n g r o u n d s b o t h p l e a d e d b y [ t h e D e p a r t m e n t ] a n d f o u n d b y t h e t r i a l c o u r t ” ) ( q u o t i n g V a s q u e z v . T

e x a s D e p ' t o f P r o t e c t i v e & R e g u l a t o r y S e r v s . , 1 9 0 S

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. 3 d 1 8 9 , 1 9 4 ( T e x . A p p . — H o u s t o n [ 1 s t D i s t
. ] 2 0 0 5 , p e t
. d e n i e d ) )

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. a t 4 7 ( K e y e s , J

. , d i s s e n t i n g ) ( s t a t i n g t h a t “ p r e d i c a t e a c t s u n d e r s e c t i o n 1 6 1

. 0 0 1 ( 1 ) r a i s e d b y [ t h e D e p a r t m e n t ] a n d s u p p o r t e d b y t h e e v i d e n c e , b u t n o t e x p r e s s l y f o u n d b y t h e t r i a l c o u r t ” s h o u l d b e c o n s i d e r e d b y a p p e l l a t e c o u r t )

. T h e D e p a r t m e n t c o n t e n d s t h i s w a s e r r o r . B e c a u s e w e h o l d t h a t t h e D e p a r t m e n t c o n c l u s i v e l y p r o v e d g r o u n d s f o r t e r m i n a t i o n u n d e r s u b s e c t i o n O , w e d o n o t r e a c h t h i s i s s u e . 6II. The Depart m ent proved grounds for ter m ination und er sub sect ion 161.001(1)( O) as a

m atte r of law . Family Code s ec t i o n 161.001(1) identifies multipl e g rounds for involuntarily terminating pare ntal rig hts. Subsection O authorizes terminati o n i f the court finds, by clea r and convincing evidenc e, that a pa

rent ha s: failed to comply with the provisions of a court order that specific ally established the actions nece ssary for the pare nt to obtain the return of the child who has been in the perma nent or temporar

y manag ing conser

vatorship of the Depa

rtment of Family and Protective S ervic es for not less th an n i n e mont hs as a result of the child’s remova l from the pa

rent unde r Chapter

262 for the a

buse or ne g lect of the child. T E X . F A M . C O D E § 161.001(1)( O). We last considere d subsection O in In re J.F.C. , 96 S.W .3d 256, 277 (Tex. 2002), an appea l of a judgme nt terminating the pare nts’ rig ht to their three children. I n t h at ca s e, the Depa rtment

rec eived a ref

err al alleg ing that the fathe r had sexually abused two of the children, but the ensuing investiga tion reve aled no evidenc e of abuse. In re J.F.C. , 57 S.W .3d 66, 68 (Tex. App.—Waco 2001), rev’ d , 96 S.W .3d 256 (Tex. 2002). A y ear later, the Depa rtment rec eived information that the pare nts “had drug problems, wer e phy sically abusive to one an o t h er , an d may have been phy sically abusing the children.” Id

. The Depa rtment investiga ted and found bruises on one of the children, as well as corr oboration of drug use in the home. Id

. The Depa rtment did not remove the children, beca

use it conclude d they wer e not in immediate dang er. Id

. I n wee kly home visits over the next seve n months, the Depa rtment found no evide nce of abuse. Id

. The Depa

rtment lear

ned, howeve r, that the pare nts wer e not participa ting in their require d counseling and continued to have conflicts among themselves. Id

. Subsequently , the Depa rtment rec eived a repor

t that the mother had

7handled one of the children roug hly ; the Depa rtment confirme d that the child (the same one who had b ru i s es previously

) had marks and scra tches on his body

. Id

. The Depa rtment found t h at t h e pare nts’ emotional health was deter iorating , and the c hildren we re not a ttending da y car e. Id

. The pare nts continued to fig ht and fac ed substantial ma rital problems and financ ial hardships. Id

. The Depa rtment remove d the children from the home and sued for temporar y conser vatorship. Id

. The trial court approved a Family Service Plan outlining t he requirements the pare nts had to satisfy to avoid termination of their rig hts. Id

. at 68-69. Primarily beca use the pare nts failed to comply with the Plan, the Depa

rtment amende d its petiti on to seek ter mination. Id . at 69. The trial court terminated the pare nts’ rig hts. Id

. at 70. A divided court of appea ls reve rsed afte r deter

min i ng that the char g e permitted the jury to find that the pare nts’ rig hts should be terminated without finding that termination would be in the children’ s best i n t er es t
. J.F.C. , 96 S.W .3d at 260. I n this Court, the pare nts arg ued, among other things, that the char g e failed to require that the same ten jurors ag ree on the specific g rounds for term i n at i o n . Id

. at 277. Be cause the question included more than one course of pare ntal conduct justify ing termination, they arg ued that their rig hts may have been terminated even though few er than ten jurors ag ree d on the basis for termination. Id

. We held that even assuming the submissi on was improper, any err or was harmless, beca use t h e Department had conclusively proved that the pare nts rig hts should be terminated under subsection O: I t i s u n d i sputed that both pare nts failed to comply with numerous, material provisions of court o rders that specific ally require d their compliance to avoid restric tion or termination of their pa renta l rig hts.
8. . . . The evidenc e establishes as a matter of law that the pare nts failed to comply

with the court’s order s s p ec i fy i n g the actions the pare nts had to take for the [Department] to return the children to the pare nts. The rec ord also conclusively establishes that the children wer e remove d from their pare nts unde r Chapter 262 of the Fa mily Code, and it is undisputed that they wer e in the [Depar

tment’s] custody for more th an n i n e months afte r their remova l. Acc ording ly , the pare ntal conduct descr ibed in subsection 16 1

. 0 0 1 (1 )( O) of the Family Code was established as a matter of law. Any err or in failing to submit a specific instruction on juror ag ree ment reg arding pare ntal conduct wa s thus harmless. Id. at 277-79. We r ever sed the cour t of appe als’ judg ment and re ndere d judgme nt te rminating the pare nts’ rig hts. Id . at 285. At least one appellate court has interpre ted s ubsectio n O i n a simil ar fashion, holding that termination was war

rante d upon proof of “immediate dang er to the phy sical health or safe ty of the child”—the emer g ency remova l standard u n d e r c h a p te r 262. In re M.L.J. , No. 02-07-0178- CV, 2008 Tex. App. L EXI S 3218, at *14-15 (Tex. App.— For t Worth May 1, 2008, pet. denied) (mem. op.);

see also T E X . F A M . C O D E §§ 262.101–.102, .104(a) (1)–( 2). I n M.L.J ., the pare nts arg ued—as M.R. does here —that subsection O was inapplicable beca use their child was not remove d for actua l abuse

or neg lect, but only beca use o f t h e ri s k of abuse or neg lect. The court of appea ls reje cted this

co n t ention. See M.L.J. , 2008 Tex. App. L EXI S 3218, at *14-18. The Depa rtment’s investi gat o r testified that the child was remove d from the pare nts, who wer e both intellectually disabled, not just beca use of the pare nts’ “lac k of skills” but also beca use they ref

used to seek help car in g fo r t h ei r child. Id . at *16. A psy cholog ist corroborated his testimony , stating tha t the m other had repor ted that the fathe r had once punched her and once shook one of the children. Id

. at *17. The

9psy cholog ist also noted that the mother had difficulty acc epting that she neede d help car ing for her

children, and that a small child fac ed a high deg ree of risk if left in the pare nts’ car e. Id

. at *17–18. The court of appea ls held that the investiga tor’s testimony “‘w ould lead a person of ordinary prudenc e and caution to believe that there is an immediate dang er to the phy sical health or safe ty of [t he child].’” Id . at *18 (quoti ng T E X . F A M . C O D E § 262.104(a) (1)–( 2)). The court c oncluded that the evidenc e supported termination under subsection O. Id. ; see also In re D.R.J. , 395 S.W .3d 316, 324 (Tex. App.—For

t Worth Fe b. 7, 2013, no pet.) (Ga rdner , J ., concur

ring ) (“This court has previously held that evidenc e was sufficie nt to establish remova l for ‘abuse or neg lect’ based upon a CPS i nvestig ator' s persona l know ledg e of fac ts tha t w ould le ad a per son of ordinar y prudenc e to believe that there is ‘an immediate da ng er to the phy sical hea lth or safe ty of t he child’ as required for remova l without a court order under family code section 2 6 2

. 1 0 4 (a )( 1), (2).” ) (citing In re M.L.J. ). Conversely , other courts hav e h el d that remova l due to risk of abuse or neg lect does not satisfy O’s re quirements. See, e .g. , In re C.B. , 376 S.W .3d 244, 252 (Tex. App.—Amar illo 2012,

no pet.); Mann v. Dep’ t of Family and Protective Servs. , No. 01-08-01004- CV, 2 0 09 Tex. App. L EXI S 7326, at *20-21 (Tex. App.—Houston [1st Dist.] Sept. 17, 2009, no pet.) (mem. op.); In re S.A.P. , 169 S.W .3d 685, 706–07 (Tex. App.—Waco 2005, no pet.) (holding that fathe r’s rig hts could
not be terminated under subsection O beca use child was remove d due only to risk of abuse based on pare nts’ prior history

). I n C.B. , the cour

t of appea ls c onsidered a case involving a mother who “admitted to r ece nt

an d ch ro n ic methamphetamine use” and who was involved in, and exposed C.B. to, an abus i v e 1 0rela tionship with her boy friend, also a methamphetamine user who kept the drug in a bedside cabine t

in their share d home. C.B. , 376 S.W .3d at 251. The boy friend had threa tened the mother’s life and repe atedly abused her in C.B.’s prese nce. Id

. at 251-52. Nonethele ss, the court held that termination und er subsection O was not proper beca use althoug h “[t] he aff

idavit portray s a volatile home environment and behavior by the mother and her para mour capa

ble of resulting in abuse or neg lect of a two-y ear -old child,

. . . § 161.001(1)( O) require s actua l occur renc e of abuse or neg lect to justify termination of pare ntal rig hts.” Id

. at 252. Even apply ing the definitions of abuse and neg lect in a rela ted chapte r, the court conclude d that subsection O’s standard had not been satisfied. Id

. at 250. “Abuse ” under chapte r 261 includes a pare nt’s curr ent use of a controlled substance, y et the court 4 found no evidenc e that the m other’s methamphetamine use cause d phy sical, mental, or emotional harm to C.B., a statutory require ment. Id

. Nor had C.B. been the victim of neg lect: “[A] pattern of violence direc ted toward the mother by her para mour would car

ry some risk that a two-y ear -old child in the home may suffe r harm, but this rec ord does not support a conclusion that C.B. was subjected
to ‘a substantial risk of immediate harm.’” Id

. (quoting T E X . F A M . C O D E § 261.001(4)( B) (i)). The

co u rt h eld that the trial court’s temporar y order s wer e not rele vant, beca use while they justifie d initial and continued remova l of C.B., they contained “no finding s that C.B. was actua lly abused or neg lected.” Id . at 250–51. I n Mann , the Depa

rtment remove d a day s-old baby from his mother due to a risk of phy sical abuse, based on the mother’s abuse of a sibling. Mann , 2009 Tex. App. L EXI S 7326, at *1–2. The

S e e T E X . F A M . C O D E § 2 6 1

. 0 0 1 ( 1 ) ( I )

. 4 1 1mother failed to complete t h e nece ssary court-or dere d service s, and the trial court terminated her

rig hts under subsection O. Id . at *3–11. The c ourt of appe als reve rsed, holding t hat t here was no evidenc e that the child had actua lly been abused or neg lected. Id

. at *16–17. Risk was not enoug h; the mother’s abusive conduct toward a sibling “do[es] not provide evidenc e that [t he mother] abused

or neg lected [t he remove d child].” Id

. at *20. Thus, the court h el d t h at t h e evidenc e was leg ally insufficient to support termination under subsection O. Id . at *20-21. I n this case , the same court of appea ls applied Mann t o re ac h t h e same conclusion. 390 S.W .3d at 27 (holding that “M.R.’s abuse of Y.C. cannot be considere d evidenc e that M.R. abused

or neg lected E.C.R. under section 161.001(1)( O)” )

. T h e c o u r t d isreg arde d the trial court’s temporar y order s finding “‘da

ng er to [E.C .R.’s] phy sical health or safe ty ’” and “‘a substantial risk of a continuing dang er i f t h e child is returne d home,’” beca use they wer e based on the risk of abuse, rathe r than “ specific alleg ations of neg lect or a buse” of E.C.R. Id . at 27–29. We ag ree that sub s ec t ion O requires proof of abuse or negle ct, but we disagr ee that those 5
terms can never be rea d to include risk. We consider their use and meaning in context of the Family Code remova l provisions and the L eg islature’s definitions of “ab u s e” an d “neg lect” in rela ted chapte rs.

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. 3 d 5 0 7 , 5 1 5 ( T e x . A p p . — H o u s t o n [ 1 s t D i s t
. ] 2 0 0 8 , p e t
. d e n i e d ) ( h o l d i n g t h a t 5 s u b s e c t i o n O r e q u i r e s p r o o f o f a b u s e o r n e g l e c t , w h i c h s h o u l d b e d e t e r m i n e d o n a c a s e - b y - c a s e b a s i s ) ; s e e a l s o D

. F

. v . T e x . D e p ’ t o f F a m i l y & P r o t e c t i v e S e r v s . , 3 9 3 S

. W

. 3 d 8 2 1 , 8 2 8 ( T e x . A p p . — E l P a s o 2 0 1 2 , n o p e t
. ) ( c o n c l u d i n g t h a t s u b s e c t i o n O r e q u i r e s p r o o f o f a b u s e o r n e g l e c t ) ; I

n r e M

. N

. , N o . 1 1

- 1 0

- 0 0 1 2 9

- C V , 2 0 1 1 T e x . A p p . L E X I S 1 9 2 4 , a t * 9 ( T e x . A p p . — E a s t l a n d M a r . 1 7 , 2 0 1 1 , n o p e t
. ) ( m e m . o p . ) ( s a m e ) ; I n r e S

. N

. , 2 8 7 S

. W

. 3 d 1 8 3 , 1 9 0 ( T e x . A p p . — H o u s t o n [ 1 4 t h D i s t
. ] 2 0 0 9 , n o p e t
. ) ( s a m e ) ; I n r e M

. L

. J

. , N o . 2

- 0 7

- 1 7 8

- C V , 2 0 0 8 T e x . A p p . L E X I S 3 2 1 8 , a t * 1 4 ( T e x . A p p . — F o r t W o r t h M a y 1 , 2 0 0 8 , p e t d e n i e d ) ( m e m . o p . ) ( s a m e ) ; I n r e S

. A

. P

. , 1 6 9 S

. W

. 3 d 6 8 5 , 7 0 5

- 0 6 ( T e x . A p p . — W a c o 2 0 0 5 , n o p e t
. ) ( s a m e ) ; I n r e M

. B

. , N o . 0 7

- 0 4

- 0 3 3 4

- C V , 2 0 0 4 T e x . A p p . L E X I S 1 1 2 0 9 , a t * 7 ( T e x . A p p . — A m a r i l l o D e c . 1 4 , 2 0 0 4 , n o p e t
. ) ( m e m . o p . ) ( s a m e )

. 1 2The prec eding chapte r, titled “I nvestig ation of Report of Child Abuse or Neg lect,” require s

that “abuse ” and “neg lect” be re p o rted to the authorities, and the failure to do so car ries criminal penalties. T E X . F A M . C O D E §§ 261.101(a) , .103(a) , .109. The term s are define d broadly and nonexclusively , but only “[i] n this chapte r.” Id

. § 261.001, (1), (4). Both definitions g ive examples 6 of abusive or neg lectful conduct, and both definitions expli citly include risk: abuse includes not just actual phy sical injury , but a “g enuine threa t of substantial harm from phy sical injury ”; n egl ec t includes placing a child in or failing to remove a child from a situati o n t h at require s actions or judgme nt bey ond his capa biliti es and that results in “a substantial risk of immediate harm to the child” or a situation in which the child would be exp o s ed t o “a substantial risk of sexual conduct h armful to the child.” Id

. § 261.001(1)( C), (4)( B) (i), (4)( B) (iv). Both definitions also in cl u d e lang uag e that permit s t h e co n s idera tion of harm to another child in deter mining whether abuse or neg lect has occur

red. See, e.g. , id

. § 261.001(1)( C) (“g enuine threa t of substantial harm” ), (4)( B) (v) (“ne g lect” includes exposi ng a child to situations in which another child fac es cer tain sexual crimes, like abuse a

nd traff icking ). Once the Depa

rtment rec eives a repor

t of abuse or neg lect, it must promptly and thoroug hly investiga te. Id

. § 261.301(a)

. I f the Depa rtment believes that the child’s immediate removal is

S e e T E X . G O V ’ T C O D E § 3 1 1

. 0 0 5 ( 1 3 ) ( “ ‘ I n c l u d e s ’ a n d ‘ i n c l u d i n g ’ a r e t e r m s o f e n l a r g e m e n t a n d n o t o f 6 l i m i t a t i o n o r e x c l u s i v e e n u m e r a t i o n , a n d u s e o f t h e t e r m s d o e s n o t c r e a t e a p r e s u m p t i o n t h a t c o m p o n e n t s n o t e x p r e s s e d a r e e x c l u d e d

. ” ) ; T

e x . W e s t O a k s H o s p . , L P v . W i l l i a m s , 3 7 1 S

. W

. 3 d 1 7 1 , 1 7 9 ( T e x . 2 0 1 2 ) ( h o l d i n g t h a t L e g i s l a t u r e ’ s u s e o f t h e t e r m “ i n c l u d i n g ” m e a n t t h a t s t a t u t o r y d e f i n i t i o n w a s n o n e x c l u s i v e ) ; s e e a l s o S a m a n t a r v . Y

o u s u f , 1 3 0 S

. C t
. 2 2 7 8 , 2 2 8 7 ( 2 0 1 0 ) ( o b s e r v i n g t h a t “ u s e o f t h e w o r d ‘ i n c l u d e ’ c a n s i g n a l t h a t t h e l i s t t h a t f o l l o w s i s m e a n t t o b e i l l u s t r a t i v e r a t h e r t h a n e x h a u s t i v e ” ) ( c i t i n g 2 A N

. S IN G E R & J

. S IN G E R , S U T H E R L A N D S T A T U T O R Y C O N S T R U C T IO N § 4 7

. 7 , p . 3 0 5 ( 7 t h e d

. 2 0 0 7 ) ( “ [ T ] h e w o r d ‘ i n c l u d e s ' i s u s u a l l y a t e r m o f e n l a r g e m e n t , a n d n o t o f l i m i t a t i o n ” ( s o m e i n t e r n a l q u o t a t i o n m a r k s o m i t t e d ) ) ; F e d

. L a n d B a n k v . B i s m a r c k L u m b e r C o . , 3 1 4 U

. S

. 9 5 , 9 9

– 1 0 0 ( 1 9 4 1 ) ( h o l d i n g t h a t “ t h e t e r m ‘ i n c l u d i n g ’ i s n o t o n e o f a l l

- e m b r a c i n g d e f i n i t i o n , b u t c o n n o t e s s i m p l y a n i l l u s t r a t i v e a p p l i c a t i o n o f t h e g e n e r a l p r i n c i p l e ” )

. 1 3nece ssary to avoid further abuse or neg lect, it must file a petition or take other action under chapte r

262 for the c hild’s temporary car e and pr otection. Id . § 261.302(d). Chapter 262, titled “Proce dures in Suit by Gover nmental Entity to Protect Hea lth and Safety of Child,” details the circ umstances under which a g overnme ntal entity may file a suit aff ecting the pare nt-child rela tionship or take possession of a child without a court order

. Id

. § 262.001(a)

. The
statute provides that “[i] n deter mining the rea sonable eff orts that are require d to be m ad e with respe ct to preve nting or eliminating the need to remove a child from the child’s home or to make it possible to return a child to the child’s home, the child’s health and safe ty is the para mount conce rn.” Id . § 262.001(b). The Department, a law enforce ment office r, or a juvenile proba tion officer may take possession of a child without a temporar y restra ining order if the chil d fac es an immediate dang er to his phy sical health or safe ty ; has been a victim of sexual abuse; is in the possession of

someone who is using a controlled substance, if it poses an immediate dang er to the child’s phy sical health or safe ty ; or i s in the possession of som eone who has permitted him to rema in on premises used for meth am p h et am ine manufa cture
. Id

. § 262.104(a) –(b). I f the Depa rtment petitions for possession of a child without prior notice and a hear ing, it must submit an aff idavit sta ting, among other things, “fa cts sufficie nt to s at i s fy a p er son of ordinary prudenc e and caution” that the child fac es an immediate dange r t o his health or safe ty , or t hat t he child has b een a victim of negle ct or sexual abuse, and that continuation in the home would be contr ar y t o the child’s welfa re. Id

. § 262.101. The trial court may issue a temporar y restra ining order only if it finds that one of those conditions has been sa tisfied.

1 4Wit hin f ourtee n day s afte r the Depa rtment has taken possession of the child, the trial court must hold a full adver sary hear ing. Id

. § 262.20 1 (a ). Following the hear ing, the trial court must order the child returne d to his pare nt unless the court finds sufficie nt evidenc e to satisfy a person of ordinary prudenc e and caution that: there was a dang er to the child’s phy sical health or safe ty that

was cause d by an act or failure to act of the person entitled to possession, and for the child to rema in in the home is contra

ry to his welfa

re; the urg ent need for protec tion require d the immediate remova l of the child and rea sonable eff orts, consistent with the circ umstances and providing for the child’s safe ty , wer e made to eliminate or preve nt the child’s remova l; and rea sonable eff orts have been made
to e nable the child to r eturn home, but the re is a substantial r isk of a continuing dang er if the child is returne d home. Id

. § 262.201(b). Continued remova l is war rante d only if the child fac es a continuing da

ng er to his phy sical hea lth or safe ty
. Id . § 262.201(b)–( c). The standard used repe atedly throug hout chapte r 262 is “d ang er to the phy sical health or safe ty of t he child.” That phrase i s also cente red on risk, rathe r t han jus t a his tory of ac tual abuse

or neg lect: the L eg islature has define d it to include “exposur e of the child to loss or injury that j eo p ardiz es the phy sical health or safe ty of the child without reg ard to whether there has been an actua l prior injury to the child.” Id

. § 1 0 1

. 009; see also id

. § 101.001(a) (“D efinitions in this subchapte r apply

to this t itle.”). I n deter

mining whe ther the c hild f ace s a continuing da

ng er to his phy sical health or safe ty , at eac h stag e of the proce eding s the court may consider whether the child’s household includes a person who has: “(1) abused or neg lected another child in a manner that cause d serious injury to or the death of the other child; or (2) sexua l l y ab u s ed another child.” Id

.

1 5§§ 262.102(b) (tempora ry restra ining order ), 262.107(b) (initial hear ing) , 262.201(d) (full adver sary hear ing)

. Although chapte r 261' s “abuse ” and “neg lect” definitions do not g overn in chapte r 262, they surely inform the terms’ meaning s. See, e.g. , Brown v. Darden , 50 S.W .2d 261, 263 (Tex. 1932) (“Whene ver a leg islature has used a word in a statute i n o n e s en s e and with one meaning , and subsequently uses the same word in leg islating on the same subject-matter , it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a differ ent meaning there by .”). S o wh i l e s ubsection O require s remova l under chapte r 2 6 2 for abuse or neg lect, those words are used broadly

. Consist ent with chapte r 262’s

remova l standards, “abuse or neg lect of the child” nece s s ar i l y includes the risks or threa ts of the environment in which the child is p l ac ed

. P art of that calc ulus includes the harm suffe red or the dang er fac ed by

other c hildren under

the par ent’s ca

re. I f a pa

rent ha s neg lected, sexually abused,

or otherwise endang ere d her child’s phy sical health or safe ty , such that initial and continued remova l

are appropr iate, the c hild has been “ remov[ed] fr om the pare nt unde r Chapter 262 for the abuse or neg lect of the child.” See T E X . F A M . C O D E §§ 161.001(1)( O), 262.101, .102, .104, .107, .201. 7 Her e, the Depa

rtment’s evidence in support of removal included an affidavit showing that the depar tment rec eived a ref

err al of phy sical abuse of Y.C. A witness had seen M.R. punching Y.C.

C f

. T E X . F A M . C O D E § 1 6 1

. 0 0 1 ( 1 ) ( E ) ( a u t h o r i z i n g t e r m i n a t i o n i f p a r e n t e n g a g e s i n c o n d u c t t h a t “ e n d a n g e r s 7 t h e p h y s i c a l o r e m o t i o n a l w e l l

- b e i n g o f t h e c h i l d ” ) ( e m p h a s i s a d d e d ) ; I n r e J

. O

. A

. , 2 8 3 S

. W

. 3 d 3 3 6 , 3 4 5 ( T e x . 2 0 0 9 ) ( h o l d i n g t h a t “ t h e e n d a n g e r i n g c o n d u c t m a y i n c l u d e t h e p a r e n t 's a c t i o n s b e f o r e t h e c h i l d 's b i r t h , w h i l e t h e p a r e n t h a d c u s t o d y o f o l d e r c h i l d r e n , i n c l u d i n g e v i d e n c e o f d r u g u s a g e ” ) ; T e x . D e p ' t o f H u m a n S e r v s . v . B o y d , 7 2 7 S

. W

. 2 d 5 3 1 , 5 3 3 ( T e x . 1 9 8 7 ) ( h o l d i n g t h a t c o n d u c t t h a t “ ‘ e n d a n g e r s . . . t h e c h i l d ’ ” d i d n o t r e q u i r e t h a t a c t i o n s “ b e d i r e c t e d a t t h e c h i l d o r t h a t t h e c h i l d a c t u a l l y s u f f e r s i n j u r y ” ) ( q u o t i n g f

o r m e r T E X . F A M . C O D E § 1 5

. 0 2 ( 1 ) ( E ) )

. 1 6and drag g ing her by her hair. Y.C. had sustained injuries. M.R. denied th e ab use, but she was

arr ested and char g ed with intentional bodily injury to a child. She had been involved in a prior CPS

case involving phy sical abuse of her older son, who was in the foster pare nts’ perma nent

conser vatorship. She left E.C.R. with her boy friend, who was not E.C.R.’s fathe r, had an extensive criminal history , and had phy sically abused her. She was incar cer ated and unable to car e for E.C.R. This aff idavit, even if not evidenc e for all purposes, shows what the tr i al co urt relied on in deter mining whether remova l was justified. That court found sufficie nt evidenc e to satisfy a person of ordinary prudenc e and caution that E.C.R. fac ed an immediate dang er to his phy sical health or safe ty , that the urg ent need to protec t him require d his imme diate remova l, and that he fac ed a substantial risk of a continuing dang er if he wer e returne d home—finding s unchalleng ed by M.R. 8 This evidence and these finding s establish that E.C.R. was remove d from M.R. under c hapter 262 for abuse or neg lect. See, e.g. , In re J.S.G. , No. 14-08-00754- CV, 2009 Tex. App. L EXI S 3224, at *18-20 (Tex. App.—Houston [14t h Dist.] May 7, 2009, no pet.) (mem. op.) (re ly ing on case worke r’s aff idavit in support of t he Department’s removal request, as well as trial court’s temporary order s concluding that the children fac ed a dang er to their phy sical hea lth or safe ty and a substantial risk

S e e , e . g . , D a n c

y v . D a g g e t t , 8 1 5 S

. W

. 2 d 5 4 8 , 5 4 9 ( T e x . 1 9 9 1 ) ( h o l d i n g t h a t m a n d a m u s r e l i e f w a s a p p r o p r i a t e 8 b e c a u s e t r i a l c o u r t ’ s t e m p o r a r y o r d e r s w e r e n o t s u b j e c t t o i n t e r l o c u t o r y a p p e a l ) ; I n r e S t e e d , N o . 0 3

- 0 8

- 0 0 2 3 5

- C V , 2 0 0 8 T e x . A p p . L E X I S 3 6 5 2 , a t * 2 n . 3 ( T e x . A p p . — A u s t i n M a y 2 2 , 2 0 0 8 , o r i g . p r o c e e d i n g ) ( “ B e c a u s e t e m p o r a r y o r d e r s i n a s u i t a f f e c t i n g a p a r e n t
- c h i l d r e l a t i o n s h i p a r e n o t s u b j e c t t o i n t e r l o c u t o r y a p p e a l u n d e r t h e f a m i l y c o d e , m a n d a m u s r e v i e w i s a p p r o p r i a t e . ” ) , m a n d

. d e n i e d , 2 5 5 S

. W

. 3 d 6 1 3 , 6 1 5 ( T e x . 2 0 0 8 , o r i g . p r o c e e d i n g ) ( “ [ W ] e a r e n o t i n c l i n e d t o d i s t u r b t h e c o u r t o f a p p e a l s ’ d e c i s i o n . ” )

. B u t s e e T E X . F A M . C O D E § 2 6 2

. 1 1 2 ( b ) ( “ I n a n y p r o c e e d i n g i n w h i c h a n e x p e d i t e d h e a r i n g i s h e l d u n d e r S u b s e c t i o n ( a ) , t h e d e p a r t m e n t , p a r e n t , g u a r d i a n , o r o t h e r p a r t y t o t h e p r o c e e d i n g i s e n t i t l e d t o a n e x p e d i t e d a p p e a l o n a r u l i n g b y a c o u r t t h a t t h e c h i l d m a y n o t b e r e m o v e d f r o m t h e c h i l d ’ s h o m e . ” ) ( e m p h a s i s a d d e d )

. 1 7of a continuing dang er if returne d home, to conclude that the evidenc e established that the children

wer e removed “as a result of negle ct s pecif ic to them by ” the mother ); see also D.F. v . Tex. Dep’t of Family & Protective Servs ., 393 S.W .3d 821, 830-31 (Tex. App.—El Paso 2012, no pet.) (noting that trial court’ s finding of immediate dange r t o child’s phy sical health or safety or t hat t hey wer e

n egl ected or abused supported finding of neg lect); In re S.N. , 287 S.W .3d 183, 19 0 (T ex . A p p . — Houston [14t h Dist.] 2009, no pet.) (holding that aff idavit, family service plan, and te mp o r a r y order s showing dang er to phy sical health or safe ty and “‘substantial risk of conti nuing dang er’ ” supported finding that chil d re n wer e remove d under chapte r 262 for neg lect); In re A.A.A. , 265 S.W .3d 507, 516 (Tex. App.—Houst o n [ 1st Dist.] 2008, pet. denied) (consider ing aff idavit in support of remova l and trial court’s temporar y orde rs fi n d ing “‘c ontinuing dang er to the phy sical health or safe ty of the child if returne d to the pare nt’” as evidenc e that child was remove d beca use of neg lect). M.R. does not dispute that she “fa iled to comply with numerous, materia l provisions of court

o r d e r s th a t s p ecif ically require d

. . . compliance to avoid restric tion or termination of pare ntal rig hts.” J.F.C. , 96 S.W .3d at 277. As in J.F.C. , the rec ord conclusively establishes that E.C.R. was remove d from M.R. under Chapter 262 of the Family Code for abuse or neg lect, and it is undisputed that he

was in the Depa

rtment’s custody for more than nine months afte r his remova l. The pare ntal conduct descr ibed in subsection 161.001(1)( O) of the Family Code was thus established as a matter of law.

1 8III. A reasonable factfi nder could have form ed a fi rm belief or conviction that te rm ination

was in E .C.R’s best inte rest . M.R. also challeng es the sufficie ncy of the evidenc e supporting the best interest finding

. I n revie wing this finding , we consider, among other e vidence , the Holley fac tors. In re E.N.C. , 384 9 S.W .3d 796, 807 (Tex. 2012). Many of the rea sons supporting termination under subsection O also support the trial court’s best interest finding

. See In re C.H. , 89 S.W .3d 17, 28 (Tex. 2002) (holding that same evidence may be proba tive of both section 161.001(1) g rounds and be st interest). M.R. pleade d g uilty to causing injury to a child, a third deg ree felony

. She twice attempted suicide while incar cer ated on that char g e, and there was evidenc e that she was mentally unstable. She no longe r has custody of any of her four children. Her oldest was taken into Depa rtment custody sever al y ear s
ear lier afte r a ref

err al o f phy sical abuse, and the trial court terminated her pare ntal rig hts. E.C.R. lives in the same foster home wi t h M

. R .’s y oung est child, a baby who was born afte r E.C.R. was taken into custody

. M.R. has a history of homelessness, and at the time of the hear ing, she had not lived in a home for six months. She has not been employ ed at any time since E.C.R. was taken into custody , jeopar dizi ng her pare ntal rig hts and violating the conditions of her community supervision. Although she told the child advoca te s he was unable to work due to preg nancy , she wa s unable to provide document at i o n s u b s t antiating that claim, nor did she explain her inability to work at all during the fourtee n months the case was pending

. When E .C.R. ca me into car e, he was behind on

S e e H o l l e

y v . A d a m s , 5 4 4 S

. W

. 2 d 3 6 7 , 3 7 1

- 7 2 ( T e x . 1 9 7 6 )

. T h e s e f a c t o r s i n c l u d e : ( 1 ) t h e c h i l d 's d e s i r e s ; 9 ( 2 ) t h e c h i l d 's p r e s e n t a n d f u t u r e e m o t i o n a l a n d p h y s i c a l n e e d s ; ( 3 ) a n y p r e s e n t o r f u t u r e e m o t i o n a l a n d p h y s i c a l d a n g e r t o t h e c h i l d ; ( 4 ) t h e p a r e n t a l a b i l i t i e s o f t h e i n d i v i d u a l s s e e k i n g c u s t o d y ; ( 5 ) t h e p r o g r a m s a v a i l a b l e t o a s s i s t t h e i n d i v i d u a l s s e e k i n g c u s t o d y t o p r o m o t e t h e c h i l d ’ s b e s t i n t e r e s t ; ( 6 ) t h e p l a n s f o r t h e c h i l d b y t h e i n d i v i d u a l s o r a g e n c y s e e k i n g c u s t o d y ; ( 7 ) t h e s t a b i l i t y o f t h e h o m e o r p r o p o s e d p l a c e m e n t ; ( 8 ) t h e p a r e n t ’ s a c t s o r o m i s s i o n s w h i c h m a y i n d i c a t e t h a t t h e e x i s t i n g p a r e n t
- c h i l d r e l a t i o n s h i p i s i m p r o p e r ; a n d ( 9 ) a n y e x c u s e f o r t h e p a r e n t ’ s a c t s o r o m i s s i o n s . I d

. 1 9his immuniz ations. He has d o n e “v er y well” in foster care , and his foster parents are meeting his

phy sical and e motional needs. The D epar tment’s long te rm g oal for E.C.R. is unrela ted adoption, althoug h there was no evidenc e that his foster family would, or would no t , adopt him. C.H. , 89 S.W .3d at 28 (“Evide nce about p l ac ement plans and adoption are , of course , rele vant to best interest.”)

. But “the lack of evidenc e about definitive plans for perma nent place ment and adoption
cannot be the dispositi ve fac tor.” Id

. Rather, we examine the entire rec ord to de cide best interest, “eve n if the ag ency is una ble to ide ntify with pr ecision the child’s future home environment.” Id

. We conclude that there is evidenc e from which a fact -f i n d er could have formed a firm belief or conviction that termination of M.R.’s par ental rig hts was in E.C.R.’s best interest. M.R. also challeng ed the fac tual sufficie ncy of the evidenc e supportin g t h e b es t interest finding , a question that the court of appea ls must decide

. S ee T E X . C O N S T . art. V, § 6(a)

. We

rema nd to that court for

consideration of the issue. IV. Conclusion We reve rse in part t h e court of appea ls’ judgme nt and rema nd to that court for further proce eding s. T E X . R. A P P . P. 60.2(d).

______________________________________ Wallace B . J eff

erson Chief J ustice

OPI NI ON DEL I VERED: J une 14, 2013

2 0